Federal Defenders of New York Second Circuit Blog


Saturday, August 20th, 2005

Loansharking Conviction Upheld

United States v. Madori, Docket No. 03-1526 (2d Cir. August 19, 2005) (Op. by B.D. Parker): No new ground is broken in this fact-intensive opinion, which principally affirms a loan-sharking conviction against sufficiency and Brady/Giglio challenges. It is worth reading only for the richness of the background story: A Mob-connected lender; a loan made at 150% interest; meetings at the Diamond Club, a local strip joint; a co-defendant clandestinly cooperating with the FBI on an unrelated case (thus generating the Brady dispute); and threats involving the “twist[ing]” of the late-paying borrower’s “nuts”. Who needs “The Sopranos”! (But does anyone know when the new season starts?)…

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Friday, August 19th, 2005

A False Statement Made on One Document, even if Not Material to that Document, Can Be Material When Considered against the Overall Process

United States v. Shitian Wu, Docket No. 03-1503 (2d Cir. August 18, 2005) (McLaughlin, Pooler, Wesley) (Op. by Wesley): Because this case was litigated by attorneys from this Office, we will refrain from commentary and stick to description.

Essentially, the majority held, with a dissent from Judge Pooler, that a false statement made in one immigration document, though immaterial to the purposes of that particular document, is nonetheless material under 18 U.S.C. § 1546(a) — prohibiting the making of “any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder” — because that document “is part of a larger application process . . . and the statute is best understood as encompassing misrepresentations of material facts in that process no matter how many documents that may include.” Op. at 4. While Wu’s false statements were …

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Thursday, August 18th, 2005

Time for a Candyman en Banc?

United States v. Willie Coreas, Docket No. 03-1790-cr (2d Cir. August 18, 2005) (Jacobs, Calabresi & Rakoff, D.J.) (Op. by Rakoff): Our faith in the rule of law has been restored. In this opinion, Judge Rakoff of the SDNY, writing for Judges Jacobs & Calabresi as well (thus covering the political spectrum from the Federalist Society to the ACS), concluded that the now-infamous “Operation Candyman” affidavit, excised of the Government agent’s fabrications, was insufficient to support the issuance of numerous search warrants, including that leading to Coreas’s arrest and prosecution for possession of child pornography. Unfortunately, because a prior panel of the Circuit reached an opposite conclusion on the same issue two weeks earlier in Martin (click here for our less-than-subtle critique of Martin), the panel in Coreas nonetheless upheld the search warrant.

The opinion in Coreas is highly recommended. Some examples to entice the reader: A powerful …

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A Great Victory for the White Collar Bar

United States v. Kenneth Jaeggi, Docket No. 04-4543-cr (L) (2d Cir. August 17, 2005) (Op. by Winter): The private white collar bar owes an enormous debt of gratitude to Judge Winter, as well as to the fine folks at Sullivan & Cromwell (representing Jaeggi), for this astounding decision. Lawyers for well-to-do securities fraud defendants can now rest assured that they will be paid for their work from the defendant’s sizable assets, even if the Government is able to prove, after securing the defendant’s conviction, that those assets are the proceeds of the fraud in question. That’s because this decision holds that 28 U.S.C. § 2461(c), generally authorizing criminal forfeiture as a punishment for any act for which civil forfeiture is authorized, does not authorize pretrial restraint of assets. The result, therefore, is that the indicted fraud defendant will continue to be able to spend his hard-earned bucks however he …

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Wednesday, August 17th, 2005

A Grim Day for the Fourth Amendment: False “Candyman” Affidavit Nonetheless Sufficient to Support Search Warrant

United States v. Joseph Martin, Docket No. 04-1600-cr (L) (2d Cir. August 4, 2005) (Op. by Walker): Chills ran down this reader’s spine while reading the majority opinion. If the Government can ransack one’s house and papers based on such barebones evidence — essentially, joining a listserve / e-group discussing illegal activity — what will it not be allowed to do? Judge Pooler’s spirited and thorough rebuttal of the majority’s faulty analysis warms the heart somewhat; perhaps it will spur the rest of the Circuit to order en banc rehearing. Her claim that “today the majority announces a dangerous precedent” is right on the mark. At least for now, those on the NAMBLA or NORML listserve should make sure to cancel their membership a.s.a.p.!

This case arises from the infamous “Operation Candyman” investigation, in which a Government agent lied — OK, made a false statement that clearly appears to …

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Tuesday, August 16th, 2005

Counsel’s Failure to Recall Reason for Not Presenting Certain Evidence Not Ineffective When Reasons for Counsel’s Decision Are Clear from the Record

Greiner v. Wells, Docket No. 04-2809-pr (2d Cir. August 8, 2005) (Op. by Wesley): This opinion, reversing the lower court’s grant of habeas, contains a very thorough discussion of the relevant facts as well as the law governing ineffective assistance of counsel claims on habeas review. It breaks no new ground, however, in concluding that trial counsel’s decision not to introduce certain evidence at trial constituted objectively reasonable strategy, given the obvious downsides of introducing the evidence in question, despite the fact that trial counsel, seven years later, could not recall why he ultimately decided not to introduce this evidence.

Perhaps the only point worth noting is the Court’s decision to discuss counsel’s subjective reasons for not introducing the evidence, even after concluding that the record amply demonstrated an objectively reasonable basis for counsel’s decision. Thus, while Strickland‘s “performance” prong is indeed an objective one, a court evaluating …

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Mandamus Granted: Trial Judge Prohibited from Bifurcating Prior Felony Element in Felon-in-Possession Trial

United States v. Amar Amante, Docket No. 05-3067-op (2d Cir. August 9, 2005) (Op. by Walker): There is little new in this opinion, disappointing and wrong-headed though it is. It simply follows upon three bad cases in the Circuit — United States v. Gilliam, 994 F.2d 97 (2d Cir. 1993), United States v. Belk, 346 F.3d 305 (2d Cir. 2003) (yours truly for appellant), and United States v. Chevere, 368 F.3d 120 (2d Cir. 2004) — holding generally that, except in an “extraordinarily unusual case” (and not merely an “ordinarily unusual case”?), bifurcation of the prior felony element in a felon-in-possession prosecution under 18 USC § 922(g)(1) is error. Amante merely clarifies that such an error is a mandamus-able one. Thus, in the future, if a trial judge should order bifurcation, the Government will be able to seek and obtain a writ of mandamus from the …

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Make Sure You Check Out Those Old Convictions!

United States v. Jimmy Glen, Docket No. 04-2394-cr (2d Cir. August 10, 2005) (Op. by Winter): This is a great little case that serves as further reminder that counsel must always check out the details of prior convictions used to enhance a current sentence. Here, defendant pled guilty to a 21 USC § 841(b)(1)(A) charge (involving more than 50 grams of cocaine base). The Government also filed a prior felony information, alleging 2 prior drug convictions (in 1977 and 1996). The effect of these priors was a mandatory minimum life sentence on the current charge, which the district judge imposed.

The Circuit vacated the sentence on appeal, finding that the 1977 conviction was not yet “final” as required under § 841. (There were actually two 1977 convictions, but that is of no moment as neither was “final”). This was so because Glen filed timely notices of appeal from the …

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A Preserved Booker Error Will Almost Never Be Found Harmless on Appeal

United States v. Francisco Lake, Docket No. 04-3238-cr (2d Cir. August 15, 2005) (Op. by Newman): Judge Newman’s monopoly in shaping Circuit law concerning appellate review of pre-Booker sentences in the wake of Booker continues. In this opinion, the Court confirms what Fagans implicitly held and what the Circuit’s practice has been since that decision: Where a defendant, pre-Booker, objected to the use of mandatory Guidelines at sentencing, the result on appeal will almost inevitably be a remand for resentencing. Lake spells out what Fagans left unsaid: Remand for resentencing is required because the Government will almost never be able to meet its burden of showing that the Booker error was harmless.

Lake was sentenced to 540 months’ imprisonment, a sentence neither at the bottom nor top of the applicable ranges. Since his sentencing occurred after Blakely but before Booker, he raised a Sixth Amendment …

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Crawford Rule Not Applicable to Out-of-Court Statements Not Offered at Trial for Their Truth

United States v. Andre O. Logan, Docket No. 03-1290 (2d Cir. August 15, 2005) (Op. by Cardamone): This opinion discusses some mildly interesting Confrontation Clause issues related to Crawford v. Washington, and also upholds the federal arson statute, 18 USC § 844, against a Commerce Clause challenge. It holds that (1) an out-of-court statement offered not for its truth need not satisfy the requirements of Crawford, which concerns only true hearsay (i.e., an out-of-court statement offered for the truth of the matter stated); and (2) § 844 does not violate the Commerce Clause when applied to the arson of a rented residence, in light of the Supreme Court’s decision in Jones v. United States, 529 U.S. 848, 854 (2000) (explicitly re-affirming Russell v. United States, 471 U.s. 858, 859-60 & n.4 (1985) (holding that congressional power extends to regulation of rented residence)).

The essential …

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Monday, August 15th, 2005

No IAC Claim Available When Counsel Acts Pursuant to Defendant’s Foolish Wishes

United States v. Dennis Wellington, Docket No. 04-3198-cr (2d Cir. August 3, 2005) (Op. by Cabranes): The addage that a lawyer who represents himself has a fool for a client applies equally to a defendant who, though represented by counsel, insists that counsel abide by his every whim regarding trial strategy, regardless of how illogical or foolish. In this case, the defendant was charged with illegal reentry and, after several failed pretrial motions to dismiss the indictment, insisted on proceeding to a bench trial on stipulated facts. Counsel told the court that defendant wished to do so because of a desire to preserve certain issues for appeal without foreclosing the possibility of an acceptance-of-responsibility reduction at sentencing. Defendant executed a written waiver of his right to a jury trial, and then stipulated in writing to every element of the charged offense.

The court of course found the defendant guilty. …

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